Zhang v. Ashcroft

United States Court of Appeals
Fifth Circuit
F I L E D
December 29, 2004
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
Summary Calendar
No. 04-60183
_______________________
RU-JIAN ZHANG,
Petitioner,
versus
JOHN ASHCROFT,
U. S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
JUDGE EDITH H. JONES:
The issue in this case is whether an unmarried, male
citizen of the People’s Republic of China is entitled to asylum,
withholding of deportation, and protection under the Convention
Against Torture because his “live-in” girlfriend, a Chinese
national living in China, was fined and forced to have an abortion
pursuant to China’s population control program.
The BIA denied relief on the basis of its decision in
Matter of C-Y-Z, 21 I. & N. Dec. 915, 917-18 (BIA 1997), which
limits statutory relief for refugees seeking asylum from a foreign

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1 The amended definition of “refugee” provides, in pertinent part:
For purposes of determinations under this chapter, a person who has
been forced to abort a pregnancy or to undergo involuntary sterili-
zation, or who has been persecuted for failure or refusal to undergo
such a procedure or for other resistance to a coercive population
control program, shall be deemed to have been persecuted on account
of political opinion, and a person who has a well founded fear that
he or she will be forced to undergo such a procedure or subject to
persecution for such failure, refusal, or resistance shall be deemed
to have a well founded fear of persecution on account of political
opinion.
8 U.S.C.A. § 1101(a)(42)(B).
2 In Ma, the court held that “[t]he BIA's refusal to grant asylum to
an individual who cannot register his marriage with the Chinese government on
account of a law promulgated as part of its coercive population control policy,
a policy deemed by Congress to be oppressive and persecutory, contravenes the
statute and leads to absurd and wholly unacceptable results.” 361 F.3d at 559.
2
country’s coercive population control program1 to spouses. Zhang
and his girlfriend were neither formally nor informally married.
For the reasons stated by the Third Circuit in Chen v. Ashcroft,
381 F.3d 221, 224-30 (3rd Cir. 2004), we accord deference to the
BIA’s determination in this case. We also note that Zhang, lacking
spousal status, exhibited no legally cognizable “resistance” to
China’s population control program — merely impregnating one’s
girlfriend is not alone an act of “resistance.” Id. Finally, the
Ninth Circuit’s decision in Ma v. Ashcroft, 361 F.3d 553, 558-60
(9th Cir. 2004) is distinguishable because the petitioner there
informally married his girlfriend in a “traditional” Chinese
ceremony, although they were forbidden from legally registering
their marriage.2 No such “informal” marriage exists in the instant
case. Thus, we need not reach the issue raised in Ma.

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3
Because Zhang has failed otherwise to support his
petition for relief due to persecution or torture, we AFFIRM the
BIA’s denial of relief and DENY a stay of deportation.

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